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Showing posts from July, 2012

Phrase in federal assault statute, 18 U.S.C. § 113(a)(3), stating "without just cause or excuse," is an affirmative defense, rather than an element of the offense

In United States v. Taylor, No. 11-2875 (3d Cir. July 25, 2012), the Third Circuit was presented with the question of whether, by including the phrase "without just cause or excuse," in provision of the federal assault statute covering assault with a dangerous weapon, 18 U.S.C. § 113(a)(3), Congress intended to convert justification from an affirmative defense into an element of the offense for purposes of the statute. The Court ultimately held that the existence of just cause or excuse is an affirmative defense to a § 113(a)(3) violation which the defendant must prove by a preponderance of the evidence.

18 U.S.C. § 113(a)(3) provides, in pertinent part:

Whoever, within the special maritime and territorial jurisdiction of the United States, is guilty of an assault shall be punished as follows ... Assault with a dangerous weapon, with intent to do bodily harm, and without just cause or excuse, by a fine under this title or imprisonment for not more than ten years, or both.

Unlicensed Distribution of Prescription Drugs Not an 'Aggravated Felony'

In Borrome v. Attorney General, No. 11-1975 (July 18, 2012), the Circuit applies the "categorical" approach used to assess the nature of prior convictions to hold that a federal conviction for the unlicensed wholesale distribution of prescription drugs is not an "aggravated felony."

The case reaches the Circuit by way of a removal proceeding instituted against a citizen of the Dominican Republic following his conviction under a federal indictment alleging the distribution of prescription drugs including Oxycontin. The term "aggravated felony" is defined by the Immigration and Nationality Act to include "illicit trafficking in a controlled substance (as defined in section 802 of Title 21), including a drug trafficking crime (as defined in section 924(c) of Title 18)." 8 U.S.C. § 1101(a)(43)(B). Under the categorical approach, "we must look only to the statutory definitions of the prior offenses, and may not consider other evidence concern…

Grant of Rule 29 Motion Based on Sufficiency Grounds and Issued After Jury’s Guilty Verdict Reversed

In United States v. Claxton, No. 11-2552 (July 9, 2012), the Third Circuit addressed an interesting issue of whether a rational fact-finder could conclude beyond a reasonable doubt that the Defendant knowingly participated in a drug trafficking organization.

Claxton was indicted with other individuals for participating in a drug-trafficking conspiracy, in violation of 21 U.S.C. § 846. The indictment alleged that the conspirators, including Claxton, sought to possess large quantities of cocaine in order to distribute that cocaine for “significant financial gain and profit”.

At the jury trial, after the Government rested its case, Claxton moved for a judgment of acquittal under Rule 29. The district court expressed concern about the sufficiency of the evidence introduced by the Government, but reserved judgment on the motion and submitted the case to the jury. The jury found Claxton guilty. Claxton then renewed his motion for judgment of acquittal, which was ultimately granted. The Gove…

Circuit Invalidates Waiver of Counsel at Trial Because Court Misinformed Defendant re Maximum Penalty

In United States v. Booker (3d Cir. 7/2/12), http://www.ca3.uscourts.gov/opinarch/072835p.pdf, the defendant represented himself at trial following an on-record colloquy in which the judge made a mistake on the sentencing range as to one count, telling the defendant he faced a minimum of five years instead of twenty-five. He also failed to advise the defendant that the maximum was life and that it must run consecutively with other counts. The panel (Greenaway for majority) finds that the waiver was structural error and requires reversal on all counts.

       Using language that may be of some use in attacking other uninformed waivers, the court holds that the waiver was invalid regardless of what effect the misinformation might have actually had on the defendant:


It is the District Court that bears the burden of ensuring that a defendant is acting voluntarily and with the appropriate knowledge before relinquishing his rights. Peppers, 302 F.3d at 130-31. Because we have be…

Plain Error Rule Applies to Review of Honest Fraud Jury Instructions Administered Before Skilling; Extraordinary Circumstances Required Review of Waived Sentencing Claim

In United States v. Ashley Andrews, No 11-1239 (Third Circuit, June 4, 2012), The Defendant, Ashley Andrews, was a contractor whose company, GRM, could not get a government contract to repair Virgin Islands sewers without a Virgin Islands business license, which in turn required a “tax clearance” letter.  To get the tax clearance letter, Andrews listed one Ohanio Harris, a Special Assistant to the Governor of the Virgin Islands, as the president of GRM on the February, 2002 application for the license. Andrews had been president of GRM until January, 2002— he resumed that office in March, 2002.  In March, 2002, Harris and Andrews went to neighboring Tortola, where Harris introduced himself to an American engineering firm as the Governor’s special assistant, vouched for Andrews to the firm’s president, and told the firm he could get a meeting with the Governor of the VI to discuss awarding sewer construction work. Harris later testified that later that day Andrews gave him $2500 in ca…

Definition of “Sexual Contact” under U.S.S.G. § 2G1.3(b)(4)(A) Does Not Require Contact with Minor Victim

In United States v. Pawlowski, No. 10–4105 (3d Cir., June 19, 2012), the defendant challenged his conviction for attempted enticement of a minor under 18 U.S.C. § 2422(b). The defendant initiated an online communication on the social networking site "My Yearbook" with an individual portrayed as a 15 year old girl named "Ashley". Ashley was in fact a detective from the Allegheny County District Attorney's Office. During their online correspondence, the defendant inquired several times about Ashley's age. Initially, Ashley listed her age as 98, then later responded that she was 15 years old. Ashley also provided pictures of herself, which were in fact pictures of a female police officer during her teenage years. The court ruled that this evidence was sufficient to prove that the defendant believed he was communicating with a minor, as required under § 2422(b).

The Third Circuit also found that the sentencing court properly applied the two-level enhancement u…

Mixed Motives Jury Instruction Proper in Prosecution under Fair Housing Act, 42 U.S.C. § 3631

In United States v. Piekarsky, Nos. 11–1567, 11–1568 (3d Cir., June 18, 2012), two of several defendants charged in the brutal beating death of a Latino American, and subsequent cover up, in Shenandoah, Schuylkill County, Pennsylvania, appealed their convictions under the federal Fair Housing Act, 42 U.S.C. § 3631. The statute criminalizes conduct which interferes with, intimidates or injures an individual because of his race or ethnicity and his decision to reside in a certain area. The defendants claimed that the trial court erred by giving the jury a “mixed motives” instruction. The defendants maintained that such an instruction was legally insufficient to support a conviction under § 3631 because it allowed the jury to find them guilty based upon evidence of other motives in addition to racial animus. The Third Circuit cited other circuits to conclude that the statute’s use of the term “because” did not “connote exclusivity or predominance.” Therefore, the defendants’ possession o…